Zumurd Hussain v. Torture Claims Appeal Board

HCAL 264/2017

[2018] HKCFI 891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 264 OF 2017

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by the Honorable Madam Justice D’Almada Remedios

Leave to apply for Judicial review refused.

Observations for the applicant:

Introduction

1.This is an application by the Applicant for leave to apply for judicial review against the decisions of Director of Immigration (“the Director”) dated 9 April 2015 and 26 April 2017[1] and the decision of the Adjudicator[2] of the Torture Claims Appeal Board (“the Adjudicator”) dated 27 April 2017.

2.The Applicant is a Pakistani national.  The basis of the Applicant’s claim is that he fears being harmed or killed by Sunni Muslims (SM) as he is a practicing Shia Muslim.  The SM were hostile towards him as they were under the impression that the Applicant was blaming the SM for a bomb attack on a Shia mosque during an Islamic Festival in April 2004.

Procedural Background

3.The Applicant departed Pakistan for Urumqi, China in late April or early May 2007.   He then travelled to Shenzhen and from there entered Hong Kong illegally by boat.  He was arrested in Hong Kong on 14 May 2007. 

4.On 28 May 2007, the Applicant lodged a non-refoulement torture claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”).  On 14 June 2007, he was released on recognizance.  Via the Duty Lawyer Service in a letter dated 13 March 2003, the Applicant withdrew his claim application. 

5.The CAT claim was reopened on 11 June 2013 and was rejected in a decision by the Director dated 27 September 2013.  The Applicant did not lodge an appeal against this decision. 

6.On 16 September 2014, the Applicant raised a non-refoulement claim under the Unified Screening Mechanism (“USM”) on the remaining grounds of non-refoulement other than the CAT claim.  That being risk of harm under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BOR3 risk”), risk of loss of life under Article 2 of Cap 383 (“BOR2 risk”) and risk of persecution on the principles in Article 33 of the 1951 Convention relating the Status of Refugees (“Persecution Risk”).

7.The Applicant’s claim was dismissed by the Director on 9 April 2015.  On 26 April 2017, a Notice of Further Decision assessing the Applicant’s claim under the BOR 2 risk was also dismissed by the Director. 

8.On 21 April 2015, the Applicant filed a petition to the Torture Claims Appeal Board (“the TCAB”) against the Director’s decisions of 9 April 2015 and 26 April 2017.  The Adjudicator rejected the Applicant’s claim and reaffirmed both decisions of the Director on 27 April 2017. 

9.The Applicant filed an application for leave for judicial review via Form 86 with supporting affirmation on 2 June 2017.

Factual basis for the Applicant’s claim

10.The Applicant was born in Sialot City, Pakistan and had completed 6 years of education.  The city is dominated by practicing Sunni Muslims.  The Applicant and his family were practicing Shia Muslims and one of only two families who did so.  All of the elected leaders in the village were SM and conflicts between Sunni and Shia was not uncommon.  None of the Applicant’s family members have ever been arrested, detained or imprisoned in Pakistan.

11.On 4 April 2004, the Applicant was on his way to a mosque to worship. The mosque was located in Mawwallah, in Gohadpur and is a place of worship for Shia, about 1½ kilometres from the Applicant’s village. 

12.Before the Applicant arrived, a bomb exploded causing heavy casualties. Fifteen hundred people were hurt and many Shia were killed.  The Applicant and his family were not hurt.  The bomb was suspected to have been planned by the SM because they wanted to kick the Shia people out.  The Applicant and his family began to fear that their lives would be in danger as a result of this incident.  The Applicant relies on a number of incidents that has caused him to fear for his life. 

The First Incident

13.This occurred about 12 days after the bombing.  The Applicant, his father and brother were returning home when around 10 SM neighbours approached.  They heard that the Applicant had blamed the Sunni’s for the bombing and were angry about this.  They used offensive language and told him to leave his home.  They were not attacked and there was no violence to the Applicant or his family members at this time.

The Second Incident

14.This occurred on the evening of the same day of the first incident.  The Applicant and his father and brother were standing outside the Applicant’s home.  The same group of neighbours SM came with some other people and repeated what they had said to him earlier about falsely accusing them for the bomb blast.  They assaulted him with their fists and hockey sticks.  This incident lasted about 5 minutes and was only stopped after police arrived. 

15.This incident caused a laceration on the Applicant’s head which required about 11 sutures but he was not admitted to the hospital.  He was prescribed ointment. It took two months for the wounds to recover.  The Applicant’s father and brother suffered only bruising.  The Applicant reported the matter to the police that had come to the scene twice in order to investigate.  He did not think the police did anything to help. 

16.The Applicant did report the incident to the police authority in the village and a report was made by his father and other Shia, who were attacked in other separate incidences.  None of the Sunni’s were arrested and the Applicant did not believe that a proper investigation was carried our because the persons involved were all Sunni’s.

The Third Incident

17.This occurred 2½ months after the first two incidents.  As he was walking to his Uncle’s home, about 10 SM came and threatened him.  Although there was no violence he said he felt afraid so moved from house to house as a result however remained in Sialkot City for a further 2½ years after this incident and encountered nothing hostile in this period. 

18.In early 2007, he moved to Karachi and stayed with a friend there.  He experienced no further Sunni threats or any other trouble but maintained that during this time he still lived in fear of them. 

19.As a result of his continued fear he left Pakistan with his Uncle in late April or early May 2007 for Giljit.  From there they went to Kashgar, then onto Urumqi in China. 

Decision of Director

20.In a Notice of Decision dated 9 April 2015 the Director rejected the Applicant’s claim.  In this case, there was no screening interview with the Applicant for reasons set out clearly in the Decision.[3] In a nutshell, there was no screening interview in the presence of the Applicant as he continuously failed to attend many scheduled screening interviews without reasonable excuse as to his absence. 

21.The sole scheduled interview that the Applicant did attend, did not proceed as he expressed that he was not feeling well as he had a toothache.  

22.Throughout this period when the screening interviews were scheduled, the Applicant was legally represented by the Duty Lawyer Service.

23.By letter dated 30 January 2015 the Director informed the Applicant that the case officer may proceed with the determination of the Applicant’s claim based on all available information if the Applicant failed or refused to attend a scheduled interview without reasonable excuse.  A number of subsequent interviews were arranged to facilitate the Applicant. 

24.The Director found that the reasons advanced by the Applicant for his failure to attend the interviews were not reasonable explanations and that ample opportunities were accorded to him.  Subsequently, the Director proceeded with the determination of the claim based on the available information[4].

25.Further by a letter dated 3 April 2017, the Applicant was invited by the Director to submit additional facts which may be relevant to his claim on applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2” and “BOR 2 risk”).  Through his duty lawyer on 21 April 2017, the Applicant confirmed that he had no additional facts to submit.

26.The Director dismissed the Applicant’s claim.

Grounds for leave to apply for Judicial Review

27.From the Applicant’s Form 86 and supporting affirmation, although not easy to decipher, it would appear that the sole ground is that there was procedural impropriety/unfairness on the basis that his last screening interview was not completed and his claim was not considered “with the complete story”.

28.What the Applicant seeks to question is if the Applicant was given the chance to present to the decision makers all evidence and documents in support of his claim and if not, was the matter left part unheard as he claims.  It is unclear however, if the basis of the Applicant’s grievance is against the Director solely, the Adjudicator solely or both decision makers.  Consequently, I shall proceed on the basis that it is against both decisions.

DISCUSSION AND CONSIDERATION

29.The central issue here is if the Applicant was given every reasonable opportunity to establish his claim before the Director and the Adjudicator. 

30.The Applicant has taken the option available to him of the alternative remedy of appealing to the TCAB.  He has been afforded reconsideration of the matter as a result of this.  It follows that judicial review of the decision of the Director is not an option open to him.

31.For the sake of completeness, having perused the Director’s decision carefully, I cannot find it reasonably arguable that the Applicant was not given an opportunity to put forward his “whole story”.  In fact he was given ample opportunity to do so and did.

32.The Applicant was given numerous opportunities to attend screening interviews[5], he repeatedly failed to do so on the scheduled appointment times on all but one occasion.  The one interview that he did attend, was cancelled as the Applicant expressed that he was not feeling well and did not wish to continue[6]. During this time, the Applicant was legally represented by an assigned Duty Lawyer.

33.The Director provided a detailed record of these numerous interview dates, the circumstances and the correspondence surrounding each instance in his decision[7]. There is no need to repeat them here. 

34.Needless to say, the Director gave every opportunity to the Applicant, however on each occasion the Applicant did not provide reasonable explanations for his failure to attend the scheduled interviews.  As provided under the Immigration Ordinance Cap 115[8], the Director may take into account, as damaging the claimant’s credibility on the failure, without reasonable excuse to attend a scheduled interview and proceed with a determination of the claim based on all available information. 

35.Additionally, via a letter dated 3 April 2017, the Applicant was invited to submit further facts in support BOR 2 risk.  Again, the Applicant requested for the delay in the deadline for submission of additional facts which the Director duly accommodated.  Finally, however via a letter from the duty lawyer dated 21 April 2017, the Applicant, confirmed, there were no additional facts to submit. 

36.The Applicant was given ample opportunity to attend a scheduled interview and present his “whole story” in support of his claim.  He did not do so.  There are no merits to the grounds advanced against the Directors decision.

37.Turning to the Adjudicator’s decision.  The Adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing.  He was again legally represented by an assigned Duty Lawyer[9]. The Applicant testified at the hearing.  This provided the Applicant with a further opportunity to advance his claim. 

38.The Adjudicator considered all applicable grounds for non-refoulement protection, including torture risk, BOR 3 risk, BOR 2 risk and persecution risk.  He correctly set out the applicable law and key legal principles for the above grounds and risks in his decision.  He considered the Applicant’s claim. The Adjudicator concluded that the claim failed under all of the headings as they did not establish a substantial risk of BOR2, BOR3 or persecution.[10] Further, the Applicant’s claim failed independently on credibility.  The reasons were stated in his decision[11].  In short, he found the Applicant was not honest, reliable or genuine giving reasons why he came to that decision. 

39.The argument that the Applicant did not have a fair hearing and did not have the chance to give his complete story is unmeritorious.  The Applicant was afforded opportunities to put forward his claim in its entirety on numerous occasions in a process that has lasted some 10 years[12]. None more so than in the lead up to the decision of the Director.[13] It appears that the Applicant was using all efforts to prolong the proceedings. 

40.The Director has been more than fair in his efforts to accommodate the Applicant and afford him a fair chance to advance his claim. 

41.The Applicant has stated he wishes to put forward the “whole story” regarding his claim.  He was able to do so both before the Director and the Adjudicator. 

42.The Adjudicator disbelieved the Applicant’s accounts.  He found that the Applicant’s claim failed independently on credibility and set out detailed, cogent reasons as why he came to this conclusion.[14] The Adjudicator was careful when assessing the Applicant’s credibility.  He found the Applicant’s account to be dishonest and was satisfied that he was not a genuine claimant.  The Adjudicator set out his reasons for rejecting the Applicant’s evidence.  The Adjudicator confirmed the decision of the Director.  The Adjudicator was entitled to make his findings against the Applicant.  There is no basis to interfere with his finding on credibility.

43.Having considered the decisions of both the Director and the Adjudicator with rigorous examination and anxious scrutiny I do not find any error in law or procedural unfairness or any failure on their part to apply the high standards of fairness in their consideration and assessment of the Applicant’s claim. The decisions satisfied the enhanced Wednesbury test, it was not Wednesbury unreasonable. 

44.I am satisfied that the Applicant’s claims are not reasonably arguable, there is no realistic prospect of success.  The applicant’s application for judicial review is therefore refused.

Dated 25^th day of April 2018

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of the application in the light of the respondent’s evidence.

Form CALL-1

[1] Decision regarding BOR 2

[2] Mr William Lam, Deputy Chairperson of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office

[3] Paras 4-7

[4] That is the Torture Claim Form dated 19 July 2013, a screen interview dated 6 August 2013, and Supplementary Claim Form dated 16 September 2014

[5] 2 January 2015, 9 February 2015 and 24 February 2015

[6] 9 February 2015

[7] Paras 4-7

[8] Section 37ZD, Immigration Ordinance, Cap 115

[9] Mr Naresh Daryananu

[10] Para 34

[11] Paras 31-34

[12] From his date of arrest on 14 May 2007 to the Adjudicator’s decision on 27 April 2017

[13] That is Notice of Decision 9 April 2015 and Notice of Further Decision 26 April 2017

[14] See paras 31-34